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The Law of International Institutions

By D. W. Bowett | Go to book overview

CHAPTER 11
INTERNATIONAL PERSONALITY

I. NATURE AND CONSEQUENCES OF THE CONCEPT

By 1945 considerable controversy existed over whether public international organisations could be regarded as possessing legal personality.1 Such personality had been claimed by writers for organisations like the International Commission for the Cape Spartel Lighthouse, the Bank for International Settlements,2 Reparation Commission and the European Commission of the Danube: in the case of the League of Nations, the modus vivendi of 1926 with Switzerland proclaimed in Article I that the League "which possesses international personality and legal capacity, cannot, in principle, according to the rules of international law, be sued before the Swiss courts without its express consent".3 In drafting the UN Charter, and apparently due to a wish to avoid any implication that the UN was a "super-state",4 the somewhat timid compromise was adopted of recognising in Article 104 that

"the Organisation shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes."

The provision on privileges and immunities in Article 105 was similarly restricted in the form of a grant "in the territory of each of its Members". Similarly, Article I, section I of the General Convention on Privileges and Immunities of 1946 seems to be concerned primarily with the position of the Organization under municipal rather than international law. The question therefore arose as to whether the Organization only had personality under municipal law, or also, to some degree, under international law; of the former interpretation Jenks stated that "it is as inherently fantastic as it is destructive of any

____________________
1
See the formidable bibliography on this question cited by Jenks, "The Legal Personality of International Organisations", ( 1945) 22 B.Y.B.I.L. 267.
2
Granted full personality by a constituent charter granted by the Swiss Government.
3
( 1926) 7 O.J.L.N., Ann. 911a, 1422.
4
Report to the President on the results of the San Francisco Conference, Dept. State Publication 2349, ( 1945) Conference Series 71, 157.

-273-

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